Hall v. Hall

71 S.E.2d 471 (1952)

235 N.C. 711

HALL v. HALL et al.

No. 746.

Supreme Court of North Carolina.

June 11, 1952.

*472 Claude V. Jones and L. H. Mount, Durham, for plaintiff-appellee.

J. Ira Lee and Jane A. Parker, Smithfield, for defendants-appellants.

BARNHILL, Justice.

The defendants' petition for certiorari is denied. The certificate they seek to have brought up was no part of the record when it was certified to this Court. It was made without notice and the Court was then without jurisdiction to settle the case on appeal, of which the exhibits offered in evidence are or would be an essential part. Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22.

The judge undertook to settle the case on appeal at the time judgment was signed. When, however, oral evidence is *473 offered, the judge cannot settle the case on appeal by an anticipatory order. Indeed, in such case, he has no authority to settle the case on appeal until and unless there is a disagreement of counsel. G.S. § 1-283; Russos v. Bailey, supra.

Exceptions which point out errors occurring during the progress of a trial in which oral testimony is offered or challenge the sufficiency of the evidence to support the facts found can be presented only through a "case on appeal" or "case agreed." This is the sole statutory method of vesting this Court with jurisdiction to hear the appeal. Unless so presented, they are mere surplusage without force or effect and must be treated as a nullity. Russos v. Bailey, supra; Harney v. Mayor and Board of Com'rs of Town of McFarlan, 229 N.C. 71, 47 S.E.2d 535; Western North Carolina Conference v. Tally, 229 N.C. 1, 47 S.E.2d 467. Hence plaintiff's motion to dismiss must be allowed in respect to the purported evidence and all exceptions and assignments of error appearing in the record, other than the exceptions to the conclusions of law made on the facts found and to the judgment entered.

While the failure to have a case on appeal works an abandonment of all exceptions and assignments of error other than those directed to alleged error appearing on the face of the record proper, it does not require a dismissal of the appeal. Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66, 67. The defendants are entitled to be heard on their exceptions presented by the record proper "which are cognizable sua sponte, e. g., want of jurisdiction or some patent defect." Bell v. Nivens, supra, and cases cited. Russos v. Bailey, supra.

"As the record contains no statement of case on appeal, we are limited to the question as to whether there is error in the judgment * * *." S. B. Parker Co. v. Commercial Nat. Bank, 200 N.C. 441, 157 S.E. 419; Fidelity & Casualty Co. v. Green, 200 N.C. 535, 157 S.E. 797; Winchester v. Grand Lodge of Brotherhood of R. R. Trainmen, 203 N.C. 735, 167 S.E. 49; Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579.

The exception to the judgment "presents the single question, whether the facts found and admitted are sufficient to support the judgment, that is, whether the court correctly applied the law to the facts found. It is insufficient to bring up for review the findings of fact or the evidence upon which they are based." Roach v. Pritchett, 228 N.C. 747, 47 S.E.2d 20, 21; Russos v. Bailey, supra; Western North Carolina Conference v. Tally, supra; Bond v. Bond, N.C., 71 S.E.2d 53.

The court below correctly concluded that the change of the name on the ledger sheet and passbook from "J. E. Hall" to "J. E. Hall, or wife, Mrs. Lukie R. Hall" had the effect only of constituting said Lukie R. Hall agent with authority to withdraw said funds during the lifetime of J. E. Hall, and that said power of attorney or agency was revoked upon the death of J. E. Hall. Jones v. Fullbright, 197 N.C. 274, 148 S.E. 229; Nannie v. Pollard, 205 N.C. 362, 171 S.E. 341; Redmond v. Farthing, 217 N.C. 678, 9 S.E.2d 405.

"To make a gift of a bank deposit there must be not only an intention to give but a delivery and loss of dominion of the property given, 30 C.J. 701, § 297. The title to the deposit remained in the husband; hence the only right the wife had to draw out the money was by virtue of the authority conferred upon her by her husband, she acting as his agent; and her power as agent was revoked by the death of her husband. 3 R.C.L. 579; Jones v. Fullbright, 197 N.C. 274, 148 S.E. 229." Nannie v. Pollard, supra.

What purports to be Exhibit K, offerred in evidence at the hearing, appears in the record. It has no proper place in the record and is not before us for considration. However, it is upon this exhibit the defendants primarily rely. For that reason we may note that on its face it makes no reference to the savings account Hall then had with the Building & Loan Association. It is a written subscription for _____ optional shares which, when issued, are to be held for the account of J. E. Hall or wife, Lukie R. Hall, as joint tenants "with right of survivorship and not *474 as tenants in common" with the right in either to pledge the shares as collateral.

In this connection the court made the following findings: "That although the signature card or card referred to as Plaintiff's Exhibit K, which was signed by J. E. Hall and Lukie R. Hall on June 27, 1945, contains the language `We hereby subscribe for ____ optional Savings Shares * * *' the fact is that no shares of stock were actually subscribed for and no shares of stock were issued by the Home Building and Loan Association, and the amount of the deposit in said account at that time remained in said account until it was later withdrawn as hereinaftei found to be the fact. * * * There is no evidence before the Court that James Edward Hall made any statement to the effect that he was giving the said savings account or any part thereof to Lukie Rogers Hall and there is no written instrument offered in evidence signed by the said James Edward Hall by which the said savings account was given to the said Lukie Rogers Hall, the only thing in writing being the signature card marked Plaintiff's Exhibit K, which the Court is of the opinion and concludes falls short of a gift of the account or an agreement between James E. Hall and his wife, Lukie Rogers Hall, as to the disposition of said fund upon the death of James E. Hall. * * * That there is no evidence from which the Court can find that there was any donative intent on the part of James Edward Hall to make a gift of said savings account to his wife, Lukie Rogers Hall, or to part with or surrender dominion or control of said account; and the Court is unable to find from the evidence that the said James Edward Hall made any agreement with his wife, Lukie Rogers Hall, to the effect that the said savings account should vest in her and be her sole property upon his death. * * * That the said account in the Building and Loan Association belonged to the estate of James Edward Hall at the time of his death. * *"

The finding that Exhibit K was not executed for the purpose of transferring the account then in the name of J. E. Hall to a joint account is implicit in the affirmative findings made. There is nothing on the face of the exhibit in conflict with the findings of the court. And the record before us fails to show that the oral testimony related the exhibit to the account. Therefore, even if we consider it, we can find nothing therein to warrant us in overruling the conclusions of law made by the court below.

It may be that in fact the account existing at the time Hall and wife visited the office of the Building & Loan Association was the subject matter of the agreement evidenced by Exhibit K and that the feme defendant has a valid claim to the balance remaining in the account at the time of the death of her intestate. If so, she has failed to bring up the evidence so as to enable us to review the findings of the judge in the light of all the testimony. On this record we are precluded from going behind the findings made. Those findings support the judgment entered. Therefore, the judgment must be affirmed.